December 11, 2024 Planning Board Special Meeting Transcript - WEHI

01/08/2025 12:06:06 PM Page 93 to 96 of 100 24 of 38 sheets 93 done, but they applied for DEP at the time that they did1 it. I know whatever the standards were required at the2 time that they applied are what applied. That's3 typically what happens and I believe that that's what --4 COUNCIL PRESIDENT RUTHERFORD: Well, that's5 a follow-up.6 MS. McGOVERN: We already got confirmation,7 I believe, you're not Mr. Hess, but Mr. Hess indicated8 and confirmed when he was here, our engineer, that the,9 that the DEP rules that were in place and the storm10 management were on the date of this application and11 that's the guideline that they have to follow.12 COUNCIL PRESIDENT RUTHERFORD: So that was a13 follow-up question, right. Because if they do govern,14 my understanding from Mr. Afran's questioning today, was15 that it's a time of decision not a time of --16 MS. McGOVERN: I understand that was Mr.17 Afran's assertion.18 COUNCIL PRESIDENT RUTHERFORD: But that may19 not be accurate?20 MS. McGOVERN: Well, I think the DEP has21 already issued something that Mr. Hess had reported to22 us and confirmed. That the DEP was taking the position23 that the storm water management rules that were in place24 at the time are in place for this application.25 94 COUNCIL PRESIDENT RUTHERFORD: That was1 storm water?2 MS. McGOVERN: Yes.3 COUNCIL PRESIDENT RUTHERFORD: What we're4 talking about right now --5 MS. McGOVERN: Trees.6 COUNCIL PRESIDENT RUTHERFORD: -- are trees.7 MS. McGOVERN: That's our personal ordinance8 that you're referring to and this location has it's own9 personal specific tree ordinance.10 COUNCIL PRESIDENT RUTHERFORD: Right. Now11 we're getting into circular arguments, because what --12 MS. McGOVERN: I see what you're saying.13 No, I do. And the DEP, I don't believe, weighed in on14 anything to do with the trees.15 COUNCIL PRESIDENT RUTHERFORD: And are they16 going to at some point?17 MS. McGOVERN: No, I don't think they have18 jurisdiction, because that's our specific local19 ordinance.20 MR. PLOCKER: I could state for the record,21 that any required DEP permits we applied for and22 granted.23 MS. McGOVERN: And you have the record, they24 have been granted?25 95 MR. PLOCKER: Yes. The storm water,1 extension of LOI, I believe they are filed in the town.2 MR. AFRAN: May I explain one moment. On3 the storm water issue and the question of which set of4 rules govern,

PLOCKER: Yes. The storm water,1 extension of LOI, I believe they are filed in the town.2 MR. AFRAN: May I explain one moment. On3 the storm water issue and the question of which set of4 rules govern, the older rule or the new rule. The DEP5 did, as Ms. McGovern just said, ruled the old rule6 applies. We are appealing that and will be asking for a7 hearing on the issue and later there will be an appeal8 to the Appellate Division. That's an issue that's not9 resolved, but it's not for this board.10 MS. McGOVERN: Exactly, and that's my point.11 We're not discussing that, we're not overruling DEP, we12 can not do that.13 MR. AFRAN: Our point only is with respect14 to trees, which is not really a direct DEP adjudicatory15 area. There is a rule that came about because the16 statutory mandate and an argument at the time of17 decision governs, not time of --18 MR. PLOCKER: We can't go --19 MS. McGOVERN: That's a fine argument that20 is not related at this. After you do your experts I get21 it, you're going to have that argument for the board and22 it will culminate in, I think, closing arguments.23 MR. AFRAN: We'll bring it out through our24 own experts to show the differences first, but also we25 96 think it governs the board. But it's an argument the1 board has to decide for itself and if we disagree there2 might be litigation.3 MS. McGOVERN: Proofs have to be submitted4 to establish which, if in fact, it does --5 MR. AFRAN: Well, there's no difference, it6 wouldn't matter. We intend to show there's a difference7 between the two.8 MS. McGOVERN: There's a number of things9 that have to be worked out.10 COUNCIL PRESIDENT RUTHERFORD: My last11 question was, with regard to the 2010, the three areas12 that were studied, is it possible to get an overlay of13 the current proposed project versus those areas that14 were studied, so we could see how much, if any of it, is15 actually in the proposed area of disturbance?16 MR. AFRAN: We'd have to have someone do a17 CAD and put them to the same scale. It takes a little18 time to do.19 CHAIRMAN BAGOFF: I'm sorry, that's up to20 the objector?21 MR. AFRAN: Yeah. Well, obviously you can't22 force Mr. DeFeo to do it. We can look into if it's cost23 prohibitive.24 COUNCIL PRESIDENT RUTHERFORD: I would like25